https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7323

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT EMBU** **CORAM: R. MWONGO, J.** **CRIMINAL APPEAL NO. E051 OF 2025** **SIMON MUREITHI IRERI….…………...…………………..………...…..….APPELLANT** **-VERSUS-** **REPUBLIC……………...….……………......………………..……………RESPONDENT** **J U D G M E N T** *Appeal arising from the decision of Hon. R. G. Mundia in Siakago MCCR Case No. E1213 of 2021 delivered on 21st March 2024* **The Charge** 1. The appellant was charged with the offence of conspiracy to murder contrary to section 224 of the Penal Code. Particulars were that on 17th July 2021 at Embu Township within Embu West subcounty in Embu County, the appellant conspired with Stanley Njogu Njiru and James Gitari Gathuri to kill Mary Wawira Ndambiri. 2. The appellant pleaded not guilty to the charge and the matter proceeded to trial. After a change in trial Magistrate, the matter proceeded *denovo*, and eventually, he was convicted and sentenced to 7 years imprisonment. **The Appeal** 1. Through his petition of appeal, the appellant prayed that the appeal be allowed, conviction be quashed and sentence set aside. The appeal is premised on grounds that: 1. That the learned trial magistrate erred in both law and facts by failing to find that the prosecution evidence had very many contradictions by various witnesses that rendered the prosecution case not proven beyond reasonable doubt as required by law in criminal justice; 2. That the trial court erred in both law and facts by making a finding that the appellant was involved or he had common intention with others to commit the alleged offence where the others were prosecution witnesses; 3. That the trial court erred in law and facts by failing to note that the evidence on record does not support the finding and judgment of the Hon. Court; 4. That the trail court erred in law and facts by failing to consider that as a first offender, the appellant was qualified for the benefit of the least severe punishment; and 5. That the learned trial magistrate still erred in law and fact by failing to note that there was no identification of the communication gadgets for receivers and senders of the said hiring monies to convict the appellant. **The Evidence in the trial Court** 1. PW1 was Mary Wawira the appellants wife. She stated that her cousin, Fredrick Munene called to inform her that he had heard some people plotting to kill her. That the hitmen were charging Kshs.200,000/- and had been paid Kshs.30,000/- to kill her but they had decided to abandon the deal but still collect the money. Since at the time of the phone call she was away in Nakuru for treatment, she did not report the matter immediately. When she returned to Embu, she reported the matter at Embu Police Station. Her cousin declined to accompany her. She stated that she met James Gitari and Nelson Njogu, her would be killers. She said that relationship with her husband was severed since he had once threatened to kill her with an axe and panga. In cross-examination, she stated that she returned from Nakuru where she had been admitted in hospital for seven days on 21st July 2021. She said that there were witnesses who would testify that Kshs.20,000 was paid as a deposit. 2. PW2 was Fredrick Munene Kabiru, a resident of Embu and PW1’s cousin. He stated that he was at PW1’s office in Embu town where he had taken a client. He saw one Njogu peeping into the office through the window from outside. He knew Njogu as a car salesman. He asked PW1 if she knew Njogu but she answered in the negative. He told PW1 that Njogu was not a good person. The following day, Njogu went to his office asking whether and how he knew PW1. He told Njogu that PW1 was his cousin and that is when Njogu disclosed that Mureithi had asked him and Gitari to kill PW1. After hearing this information, he called PW1 to inform her but at the time, she was on her way to Nairobi for treatment and she had planned to report the matter to the police as soon as she was back in town. On 24th July 2021, Njogu called to ask him whether PW1 was back from the hospital. The witness stated that he called his uncle Simon Gacharia and informed him about what Njogu had told him and Njogu had to explain the issue to Simon. Eventually, the matter was reported at Embu Police Station. He knew that the appellant was PW1’s boyfriend. He did not know whether Njogu or Gitari had been paid any money. 3. PW3 was James Gitari Gathugi a resident of Laikipia and a driver. He stated that he met one Njogu at Munyi’s Bar on 17th July 2021. The appellant joined them and talked to both of them about his plan to have PW1 killed. The appellant told them that the target was a land agent who had an office near the police station and he showed them the office from a distance. They asked him for money to do the work and he told them that he was being cautious because he had been swindled on Kshs.150,000/= by someone else for the same job but they failed to kill PW1. It was his evidence that the appellant had once Cecily, whom he called his aunt, send PW2 Kshs.9,000/= from her phone number. He referred to the M-Pesa statement of PW2 as evidence of the payment. He stated that they had agreed that the appellant would pay Kshs.200,000/= but the appellant insisted to pay Kshs.150,000/= after the work is done. When they went to meet PW1, they found the office closed and they reported to the appellant that the work was finished. On cross-examination, he stated that he had known Njogu for 2-3 years as a car salesman. He denied that the money given by the appellant to him was a debt. 4. PW4 was Stanley Njogu a resident of Naivasha. He stated that he was with PW3 at Munyi’s bar when the appellant approached them and asked them to kill PW1 for a fee. The appellant told them that he had invested in several businesses with PW1 but she wanted to take his money and get away with it. He offered to pay but only after the work was done since another hitman had collected Kshs.150,000/= from him but failed to complete the same work. The appellant took them to the place where PW1 stayed and he showed them the house and then he showed them PW1’s office near Embu Police Station. They asked the appellant for some money and he instructed a certain lady to send some money to them. He was with PW3 when the appellant sent them Kshs.1,040/= and a further Kshs.1,470/= on M-pesa and they intended to go and threaten PW1. When they got to her office, they found PW1 busy with clients and then PW2 spoke to them and they lied that they were bringing her a client. PW2 called PW1 who stated that she was on her way to the hospital and they advised her to close the office to show the appellant that they were serious. After 2 days, they reported to the appellant that they had completed the job and to prove this, that they told him that PW1’s office had remained closed for 2 days. On hearing this, the appellant instructed his aunt to send them a total of Kshs.19,950/= which is not the Kshs.200,000/= that he had promised to pay them. Later, PW1 and PW2 reported the matter at Embu Police Station. He stated that when the appellant was instructing them, he was not drunk. In cross-examination, he stated that the plot to kill was made on 10th July 2021 and the money was sent on 17th July 2021 by one Cecily. They recorded their statements with the police. 5. PW5 was Moses King’ori Mwangi worked as a security guard at the complainant’s residence at the time of the incident. He stated that on 03rd August 2021, 2 men went to the apartment block where the complainant stayed and they said that they wanted to see her. He recalled that the complainant had told her about some people who had threatened her life. At the time, another tenant was moving out of one of the houses and so he lied to the men that the complainant was the one moving out. That if they wanted to know where she lived, they should simply follow the lorry to its destination. The following day, he informed the complainant that the 2 men came asking for her. 6. PW6 was Cpl. Mary Mwangi of DCI at Embu Police Station. She stated that she investigated the matter after it was reported at the police station. She established that the complainant and the appellant are estranged spouses and that the appellant had hired goons to kill the complainant. The appellant offered the goons money and told them the he would pay the full amount once the job was completed because some other hitmen had failed him before and swindled him Kshs.150,000/=. The goons were PW3 and PW4 and they were paid a down payment for the work. 7. In his defense as DW1, the appellant stated that at the time of his separation with the complainant, he owed her some money and they entered into an agreement on how to repay the same. On 14th July 2021, the complainant started alleging that he was planning to kill her meaning that she knew of the plot. According to him, the prosecution witnesses are lying when they say that they were together at the complainant’s office. That they were buying and selling vehicles together, and that PW4 was their broker who sold him motor vehicle registration number KBP 419P. He owed Stanley Kshs.10,000/= from the transaction. In cross-examination, he stated that there was a civil suit file which was determined against him. That it would not have benefitted him in any way if the complainant died. Once before, he had been accused of trying to kill the complainant but the police dismissed the claim. **Parties’ Submissions on the appeal** 1. The appellant submitted that the testimonies offered by the prosecution witnesses were not enough to implicate him. He took issue with the fact that no employee from Munyi’s bar was called as a witness. That even though it was alleged that the paid the would-be assassins Kshs.200,000/= in installments, there is no supporting evidence for this allegation. He relied on the case of **Waringa v Republic [1984] KECA 62 (KLR)** and stated that PW3 and PW4 should be treated as accomplices. He discredited the testimony of PW2 which ought to be treated with caution and suspicion. It was his argument that the prosecution’s case was full of contradictions and could not sustain a conviction. He prayed that the appeal be allowed. 2. The respondent relied on section 224 of the Penal Code and the case of **Moses Kathiari Rukunga v Republic [2018] KEHC 6451 (KLR)** and submitted that all the evidence adduced was well corroborated. Further reliance was placed on the cases of **Abdi & another v Republic [2024] KEHC 8021 (KLR)** and **Evans Waweru Maina v Republic [2020] KECA 731 (KLR)**. 3. It submitted that any contradictions in the prosecution’s case do not change the fact that the appellant conspired with others to kill the complainant. It relied on the case of **MTG v Republic [2022] KEHC 16212 (KLR)** to support this point. It stated that there is no reason to interfere with the sentence imposed by the trial court since the same is fair and just. On this, it relied on the case of **Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR)**. **Issues for Determination** 1. The issue for determination is whether the conviction and sentence should be upheld or set aside. **Analysis and Determination** 1. It is this appellate court’s duty to re-examine the trial court’s record in order to determine the appeal. In **Kiilu & Another vs. Republic [2005]1 KLR 174**, the Court of Appeal stated thus on an appellate court’s duty: “***An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.***” 1. Section 224 of the Penal Code provides for conspiracy to murder as follows: ***“Any person who conspires with any other person to kill any person, whether that person is in Kenya or elsewhere, is guilty of a felony and is liable to imprisonment for fourteen years.”*** 1. PW1, the complainant, stated that she was married to the appellant, but they had since separated. That during their marriage, the appellant was violent and she once reported the violent confrontations to the police, although nothing was done about it. When PW2 called to tell her that he had heard about a plot to kill her, she was out of town in Nakuru. She only managed to report the matter a few days later when she returned. PW2 said that he saw PW4 peeping into their office where he works with PW1. 2. PW2 said that when they spoke, PW4 told him that the appellant had sent him and PW3 to kill PW1 in exchange for money. PW3 and PW4 stated that the appellant met them at a bar called Munyi’s and offered to pay them some money to kill the complainant. They decided to play along and so they demanded for Kshs.200,000/=. Part of the evidence adduced consisted of M-pesa statements which show that the appellant sent PW3 some money (P.Exb1 and P.Exb 2). 3. Both PW3 and PW4 stated that the appellant sent them money in installments because he was apprehensive that they would con him like a previous hitmen had done having taken his money upfront and failed to kill the complainant. PW5 who worked at the apartment where the complainant lived, confirmed that there were some men who came to the apartment seeking for the complainant. However, he lied to them that she had moved to a different location. 4. In his defense, the appellant denied any wrongdoing as alleged. He asserted that he worked with Stanley Njogu in the business of buying and selling cars but he did not have any illegal dealings with him. He stated that he sent PW3 some money because he owed him Kshs.10,000/= from a car sale that was completed and so he was repaying the debt. 5. According to the **9th Edition Black’s Law Dictionary**, Conspiracy means: “***An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose***.” 1. It is common ground that the appellant, PW3 and PW4 had a meeting. It is disputed, but corroborated, that it is during that meeting which the appellant shared with them his intention to have the complainant killed. Section 224 of the Penal Code anticipates that for this offence to be proved, there should be proof of an agreement by 2 or more people to murder someone. That proof was availed in the form of the corroborated evidence of PW3, PW4 and also PW2. 2. In this case, there is proof that the appellant was willing to pay, and he did pay, PW3 and PW4 some money after their meeting at Munyi’s Bar. The testimony of PW5 is also key because he confirmed that after the conspiracy had been created, 2 men went looking for the complainant at her residence. 3. The trial magistrate considered all this evidence and the circumstances of the offence before convicting the appellant. After re-examining the evidence and submissions made, I am persuaded there is no error in the findings of the trial court on the issue of conviction. 4. As far as sentencing is concerned, Section 224 of the Penal Code recommends a sentence of 14 years imprisonment upon conviction for conspiracy to murder. The trial magistrate sentenced the appellant to a reduced term of 7 years imprisonment. As such, there is no basis for reviewing this sentence since discretion has already been applied by the trial court. **Disposition** 1. In light of the foregoing, the appeal is hereby dismissed both as to conviction and sentence. 2. The trial Court’s judgment is upheld in its entirety. 3. Orders accordingly. **Delivered, dated and signed at Embu High Court this 28th day of May, 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. MWONGO** **JUDGE** **Delivered in the presence of:** 1. Appellant Present at Nyeri Maximum Prison 2. Kariuki for Appellant 3. Ms. Mwaniki for the Respondent 4. Francis Munyao - Court Assistant